Have you ever thought about what might happen to frozen eggs, sperm and embryos when you die, or wondered about the laws surrounding reproductive material? This is a fascinating area of the law that can be really complex if consent isn’t specified before the fact (re: death). But before we begin, it’s important to note that legislation and regulation of fertility treatment varies across countries and Australian states and territories, so consider this guide as a general explainer only.
Firstly, here are some important terms, explained:
In vitro fertilisation (IVF)
This is the fertilisation process of a human egg by sperm, typically occurring in a Petri glass dish (hence the reference in vitro – meaning ‘in glass’). IVF has been a life changing innovation for couples and single people undergoing fertility treatment, and those who are about to undergo cancer treatment. That’s IVF in a Petri dish-sized nutshell.
Egg and sperm freezing
‘Freezing’ is the popular name for ‘cryopreservation’ in the IVF laboratory. This process means fertility specialists can preserve eggs, sperm, embryos and even tissue fragments of ovaries and testes – although the latter is still in its experimental phase.
Egg freezing & IVF
It’s easy to confuse egg freezing and IVF, but the main difference between the two procedures is in the timing. Rather than attempting to get pregnant right away, egg freezing gives people the option to store unfertilised eggs for the future, for when and if they are ready to have a baby. If this is the case, the eggs are then thawed in the lab and the rest of the IVF process completed. You may have even seen many celebrities and well-known public figures speak openly about their egg freezing experiences, like Jamie Chung, Brittany Hockley and Paris Hilton, to name a few.
An embryo is a human egg which has been fertilised with sperm.
What happens if a couple separates, or one dies?
IVF consent forms will ask patients to consider the next course of action for the respective embryos in the event that a couple separates or one dies. The options are to either:
- Dispose of the embryos, or
- Keep them in storage until there is a legal agreement in place that indicates who is responsible for them.
- If a single person undergoes treatment and dies – usually disposal occurs.
It’s important to note that if embryos are created, both partners have the right to veto future use of the embryos. Should a relationship break down, it’s possible that one partner could lose access to their own reproductive material.
What happens to your frozen eggs and sperm if one or both parents die?
Typically, if both partners die, the eggs and sperm respectively would be discarded by the fertility clinic. If the owner of the egg dies, their prior legal consent may be fulfilled. For their remaining eggs to be used by the surviving partner, the fertility centre would require a court order before commencing further treatment. The same would apply for frozen sperm, which is usually an option for men who are about to undergo cancer treatment. So, for their remaining sperm to be used by the surviving partner, a court order would again be required. If this is an area of interest for you, obtaining legal advice about egg and sperm ownership and disposal might be helpful.
What happens to embryos if one or both parents die?
There are a couple of options for embryos that are left over after a death. You could allow the clinic to dispose of the embryos, or you could donate the embryos to infertile couples. This is something you will need to discuss with your partner, your family or your friends before the embryos are created as you’ll need to provide your consent beforehand. It’s also worth including in your Will so your family is aware of how to carry out your wishes.
Can a spouse use stored sperm or eggs after a partner dies?
Technically, it’s possible. But there must be written consent and both parties must agree.
What happens if there is no written consent?
This would reduce the likelihood that the spouse would be able to conceive using their partner’s sperm or eggs.
Can I include my consent in my Will?
You can, but it's not recommended. Instead, if you’re planning for a family, consent should be written in a separate letter which is signed and witnessed. In the letter you can indicate what you’d like to happen to your frozen eggs, sperm or embryos in the case of death for yourself, your partner, or both parties. We know it’s a difficult conversation to have, but it’s one worth having.
This is a complex area of the law, and it is embryonic (pardon the pun) in its nature, with some rulings being upheld on a case-by-case basis.
It’s important to note that laws differ in different countries, and even in different states in Australia. If you’re wondering what you can do in order to clarify your wishes, the answer is lay your them out in writing as clearly as possible, and if you’re signing any IVF consent forms, ensure there’s a plan laid out in case of separation or death.
We know that talking about birth, fertility and death can be really difficult for so many people. If you’d like to talk to someone, here are some organisations that can help: